Citation Nr: 0122545
Decision Date: 09/17/01 Archive Date: 09/24/01
DOCKET NO. 00-02 366 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran's death.
2. Entitlement to Survivors' and Dependents' Educational
Assistance (DEA) under Chapter 35, Title 38, United States
Code.
REPRESENTATION
Appellant represented by: Marine Corps League
ATTORNEY FOR THE BOARD
Nancy Rippel, Counsel
INTRODUCTION
The veteran served on active duty from May 1944 to May 1946,
and died in March 1999. The appellant is the veteran's
widow.
This matter arises from a September 1999 rating decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Detroit, Michigan, which denied the benefit sought. The
appellant filed a timely appeal, and the case has been
referred to the Board of Veterans' Appeals (BVA or Board) for
resolution.
As a preliminary matter, the Board observes that with her
notice of disagreement (NOD) received in November 1999, the
appellant submitted a VA Form-9 in which she indicated that
she wished to appear before a member of the BVA at a personal
hearing at the RO. No statement of the case (SOC) had been
issued. Following issuance of the SOC in December 1999, the
appellant submitted a timely appeal (VA Form-9) in February
2000, in which she indicated that she did not wish to have a
personal hearing before a Member of the BVA. The Board
considers this to be a withdrawal of the previous request.
Accordingly, given that the appellant has declined the
opportunity to present testimony at a personal hearing, the
Board will proceed with its review of her claim at this time.
In a September 1999 rating decision, the RO denied claims for
an increased evaluation for residuals of acute infectious
hepatitis as well as service connection for inclusion body
myositis as secondary to the veteran's service-connected
residuals of acute infectious hepatitis for purposes of
accrued benefits. That decision has not been appealed by the
appellant. However, the service connection claim was denied
as not well grounded. It is referred to the RO for
appropriate action.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
resolution of the issue on appeal has been identified and
obtained by the RO.
2. The veteran's death certificate shows that he died on
March [redacted], 1999, of circulatory collapse due to
cardiopulmonary arrest, due to gram negative multilobar
pneumonia. Other significant conditions listed as
contributing to death, but not resulting in the underlying
cause, included inclusion body myositis-myopathy.
3. At the time of the veteran's death, service connection
was in effect for residuals of infectious hepatitis,
evaluated as 10 percent, effective from June 1, 1946.
4. Circulatory collapse, cardiopulmonary arrest, gram
negative multilobar pneumonia or inclusion body myositis-
myopathy were not shown during the veteran's active military
service or within an appropriate presumptive period following
separation, and are not shown to have been otherwise related
to service or a service-connected disability.
5. A service-connected disability did not contribute
substantially or materially to the veteran's cause of death.
CONCLUSIONS OF LAW
1. A service-connected disability did not cause, or
contribute substantially or materially to cause, the
veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,
1310, 5103, 5103A, 5107 (West 1991 & Supp. 2001); 38 C.F.R.
§§ 3.102, 3.303, 3.307, 3.309, 3.312 (2000); 66 Fed. Reg.
45,630-45,632 (Aug. 29, 2001) (to be codified as amended at
38 C.F.R. § 3.159).
2. The requirements for payment of Chapter 35 Dependents'
Educational Assistance benefits have not been met. 38
U.S.C.A. §§ 3501, 3510, 5107 (West 1991 & Supp. 2001); 38
C.F.R. § 3.807 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Cause of Death
The appellant contends that the veteran died as a result of
his service-connected residuals of infectious hepatitis. She
does not contend and the record does not show that the
disorders listed on the certificate of death were incurred in
or aggravated in service, or manifest to a compensable degree
within any applicable presumptive period. Review of the
record confirms this fact. She does maintain, however, that
the veteran's service-connected hepatitis caused the
veteran's inclusion body myositis myopathy, which was listed
on his death certificate as a significant contributory cause
of death, and that therefore a grant of service connection is
appropriate. In such cases, the VA has a duty to assist the
appellant in developing facts which are pertinent to such
claim.
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C. § 5100,
5102, 5103, 5103A, 5107), which applies to all pending claims
for VA benefits, and which provides that the VA shall make
reasonable efforts to assist a claimant in obtaining evidence
necessary to substantiate his or her claim for benefits under
the laws administered by the VA. The VCAA is applicable to
all claims filed on or after the date of enactment, November
9, 2000, or filed before the date of enactment and not yet
final as of that date. See VCAA 2000, Pub. L. No. 106-475, §
7(b), 114 Stat. 2096, 2099-2100 (2000), 38 U.S.C.A. § 5107
note (Effective and Applicability Provisions).
First, the VA has a duty to notify a claimant and his or her
representative of any information and evidence necessary to
substantiate and complete a claim for VA benefits. See VCAA,
§ 3(a), 114 Stat. 2096, 2096-97 (2000) (codified at 38 U.S.C.
§§ 5102 and 5103). Second, the VA has a duty to assist a
claimant in obtaining evidence necessary to substantiate his
or her claims. See VCAA, § 3(a), 114 Stat. 2096, 2097-98
(2000) (codified at 38 U.S.C. § 5103A).
VA issued regulations to implement the VCAA in August 2001.
66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as
amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)).
The amendments were effective November 9, 2000, except for
the amendment to 38 C.F.R. § 3.156(a) which is effective
August 29, 2001. Except for the amendment to 38 C.F.R. §
3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38
C.F.R. § 3.159(c)(4)(iii), VA stated that "the provisions of
this rule merely implement the VCAA and do not provide any
rights other than those provided in the VCAA." 66 Fed. Reg.
45,629. Accordingly, in general where the record
demonstrates that the statutory mandates have been satisfied,
the regulatory provisions likewise are satisfied.
The Board finds that the VA has provided the appellant with
proper notice of the type of evidence, medical and otherwise,
necessary in order to complete her claim. Here, while the
appellant was given notice of the type of evidence required
to establish a "well-grounded" claim, which is no longer a
valid basis for service connection, see 38 U.S.C.A § 5103A ,
supra, the basic elements for establishing service
connection, irrespective of the "well-grounded" doctrine,
have remained unchanged. The Board concludes that
discussions as contained in the initial rating decision, in
the subsequent statement of the case and supplemental
statement of the case, in addition to correspondence to the
appellant, have provided her with sufficient information
regarding the applicable regulations and the evidence
necessary to substantiate her claim. The Board finds,
therefore, that such documents are essentially in compliance
with the VA's revised notice requirements. The Board finds
that the VA does not have any further outstanding duty to
inform the appellant that any additional information or
evidence is needed.
The Board also finds that all relevant facts have been
properly developed, and that all evidence necessary for an
equitable resolution of the issue on appeal has been
identified and obtained. The appellant was offered the
opportunity to present testimony at a personal hearing,
either before a hearing officer at the RO, or before a member
of the Board. In support of her claim, pertinent post-
service clinical treatment records in addition to statements
received from the veteran's treating physician were
submitted. Further, the RO sought an expert medical opinion
in order to help clarify any ambiguity surrounding
circumstances involving the veteran's cause of death. The
appellant was also offered the opportunity to submit
additional evidence in support of her claim. The Board is
not aware of any additional relevant evidence which is
available in connection with the issue on appeal, and
concludes that all reasonable efforts have been made by VA to
obtain evidence necessary to substantiate the appellant's
claim.
Given that the efforts by the RO to notify the appellant and
to assist her in obtaining evidence to substantiate her claim
were thorough and consistent with the requirements of the
newly enacted statutory and regulatory provisions regarding
VA's duty in this regard, the Board finds that the appellant
is not prejudiced by the Board's decision not to remand this
case to the RO. See Bernard v. Brown, 4 Vet. App. 384, 394
(1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430
(1994) (remands which would only result in unnecessarily
imposing additional burdens on the VA with no benefit flowing
to the appellant are to be avoided); Karnas v. Derwinski, 1
Vet. App. 308, 312-13 (1991).
Generally, service connection for the cause of a veteran's
death may be granted if a disorder incurred in or aggravated
by service either caused or contributed materially to the
cause of death. See 38 U.S.C.A. § 1310 (West 1991);
38 C.F.R. § 3.312 (2000). The issue involved will be
determined by exercise of sound judgment, without recourse to
speculation, after a careful analysis has been made of all
the facts and circumstances surrounding the death of the
veteran, including, particularly autopsy reports. A service-
connected disability will be considered as the principal
(primary) cause of death when such disability, singly or
jointly with some other condition, was the immediate or
underlying cause of death, or was the principal cause. In
determining whether a service-connected disability
contributed to death, it must be shown that it contributed
substantially or materially; that it combined to cause death,
that it aided or lent assistance to the production of death.
It is not sufficient to show that it casually shared in
producing death, but rather, it must be shown that there was
a casual connection. Id.
In the present case, the veteran's death certificate shows
that he died on March [redacted], 1999, of circulatory collapse due
to cardiopulmonary arrest, due to gram negative multilobar
pneumonia. Other significant conditions listed as
contributing to death, but not resulting in the underlying
cause, were listed as inclusion body myositis myopathy. As
noted, at the time of the veteran's death, service connection
was in effect for residuals of infectious hepatitis,
evaluated as 10 percent disabling, effective from June 1,
1946.
Service medical records indicate that the veteran was treated
for moderate acute, infectious hepatitis with jaundice in
service in March-April 1945. On separation examination in
May 1946, it was noted that the veteran gave a history of
having been treated for infectious hepatitis between April
and June 1945, and he reported that he was still bothered by
indigestion and tenderness over the liver area. It was
noted, however, that physical examination at the time of
separation showed no abnormality. No other pertinent
abnormalities were reported on this examination.
Circulatory collapse, cardiopulmonary arrest, gram negative
multilobar pneumonia or inclusion body myositis-myopathy were
not shown during the veteran's active military service or
within an appropriate presumptive period following
separation, and the appellant does not contend otherwise.
See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991 & Supp.
2001); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2000).
Service connection was granted for indigestion and tenderness
over the liver area following hepatitis and jaundice, in a
July 1948 rating decision. A 10 percent disability
evaluation was assigned at that time.
The veteran was afforded a VA examination in June-July 1949.
At that time, the veteran reported that since service, he had
periodic attacks of loss of appetite and became yellow. He
reported that he had had such an attack in August 1948 which
lasted two weeks although he did not see a doctor. The
diagnosis, following examination was residuals of hepatitis
and jaundice, although the exact nature of such residuals was
not specified. The service-connected disability was
recharacterized as residuals of infectious hepatitis in a
July 1949 rating decision.
The veteran was afforded another VA examination in July 1953.
At that time, the veteran stated that since service, he had
difficulty in eating fatty or fried foods in that such foods
caused nausea and occasional vomiting. He also reported
several recurrences of yellowish discoloration of his eyes,
but reported that he had never seen a doctor for it and had
never been confined to bed because of it. The diagnosis was
infectious hepatitis with residuals manifested by impaired
liver function.
Clinical treatment records from Wallace Christy, M.D., dating
from November 1995 through March 1998 show that the veteran
had been seen for complaints of dysphagia, increasing
weakness, difficulty swallowing, and some nocturnal
incontinence. These symptoms were considered to be part of a
body myositis disorder. The veteran was noted to have had a
20-year history of inclusive body myositis (IBM). A
treatment record dated in November 1995 shows that the
veteran also gave a history of chronic hepatitis. The
treating physician indicated that he was unaware of the type
of hepatitis the veteran had in the past, and offered that he
needed a full examination of the record and the veteran to
determine the particular type. There were no noted symptoms
attributable to hepatitis, other than notations that the
veteran had a history of that disease and no indication that
the myositis was related to the veteran's service-connected
infectious hepatitis.
Prior to the veteran's death, a letter dated in October 1998
was received from the veteran's treating physician, who was
associated with the University of Michigan Medical Center,
Department of Neurology. According to John J. Wald, M.D.,
the veteran had asked him to provide medical evidence to
establish a potential link between his service-connected
hepatitis and his diagnosed body myositis. The doctor stated
that during the course of treatment, the veteran had informed
him that he had been diagnosed with jaundice and hepatitis in
service in 1945, but that the particular type of hepatitis
had never been determined. The doctor stated that the
veteran informed him that he had experienced several episodic
febrile periods, and that some 30 years later, in 1977, he
had noticed progressive weakness in his body. At the time of
the letter, the veteran was diagnosed with biopsy-proven
inclusion body myositis which was unresponsive to therapy.
The veteran was characterized as being severely disabled and
was unable to function independently. With respect to a
potential link between the veteran's diagnosed IBM and
service-connected hepatitis, the doctor stated that the
specific inclusions seen inside the veteran's muscle cells in
the myositis resembled inclusions in other chronic viral
infections, suggesting that they might be involved in the
pathogenesis. He also stated that in other chronic viral
infections such as HIV, there can be associated inflammatory
myopathy. In addition, the doctor indicated that a recent
publication showed that a case of chronic hepatitis-C was
associated with inclusion body myositis.
In July 1999, the RO requested that the chief medical
administrator of the VA Medical Center in Ann Arbor obtain a
medical opinion as to the likelihood of a relationship
between the veteran's service-connected hepatitis and IBM
that caused his death. The file was forwarded to the
assistant chief of neurology at the University of Michigan
Medical Center, who provided an opinion in August 1999. In
response to the RO's request, the doctor replied by letter of
August 1999 that while there was a remote possibility that
infectious hepatitis incurred some 50 years ago might have
resulted in the more recent diagnosis of inclusion body
myositis, such was considered unlikely. The doctor stated
that he had reviewed the relevant medical records, and
offered that by his own experience and a careful review of
literature, it appeared that inclusion body myositis had a
multifactorial etiology. On only one occasion was body
myositis associated with a specific viral illness, hepatitis-
C. He offered that while other types of hepatitis may be
associated with myositis and myopathy, at that time, there
was no definitive association between inclusion body myositis
and infectious hepatitis with which the veteran had been
diagnosed some 50 years previously. Accordingly, while he
acknowledged that there was a remote possibility of a
relationship, it was considered unlikely that the service-
connected infectious hepatitis had resulted in the diagnosed
inclusion body myositis. (emphasis added).
Thereafter, Dr. Christy provided additional comment. In
October 1999, he indicated that inclusion body myositis was
an inflammatory disease of the muscles of an unknown origin.
It was an uncommon condition, and there had been speculation
that it might possibly be related to some sort of viral
illness. However, he stated that to his knowledge, "no
causal links to any specific virus had been established."
In further support of her claim, the appellant submitted an
additional letter from Dr. Wald. Dr. Wald, indicated in
November 1999, that the veteran had been treated for a
progressive muscle disorder diagnosed as inclusion body
myositis. He noted that there had been reported associations
of inclusion body myositis and hepatitis. He did not
elaborate further on that statement. Dr. Wald submitted a
third statement in January 2000 in which he reiterated that
while the exact cause of IBM was unknown, there were
suggestions of an infectious relationship.
The appellant also submitted a letter dated in May 1948 from
the veteran's college Reserve Officer Training Corps (ROTC)
commander stating that in view of his diagnosed chronic
hepatitis incurred in service, he was physically disqualified
from the ROTC program.
The Board has evaluated the foregoing, and concludes that the
preponderance of the evidence is against a finding that the
veteran's service-connected residuals of infectious hepatitis
caused or materially contributed to his death. In this
regard, the Board finds that with respect to the evidence
presented, less weight must be accorded the opinions of Dr.
Wald than the other opinions of record. See Hayes v. Brown,
5 Vet. App. 60, 69-70 (1993) (It is the responsibility of the
Board to assess the credibility and weight to be given the
evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93
(1992)). See also Guerieri v. Brown, 4 Vet. App. 467, 470-71
(1993) (the probative value of the medical evidence is based
on the physician's knowledge and skill in analyzing the data,
and the medical conclusion the physician reaches, as is true
of any evidence, the credibility and weight to the attached
medical opinions are within the province of the Board). The
Board recognizes that the veteran was diagnosed with
infectious hepatitis in service, and that he was physically
disqualified from participation in his college ROTC program
due to that disorder in 1948. The Board further recognizes
that the veteran's attending physician, Dr. Wald has stated
that there has been one link between hepatitis C and
inclusion body myositis. However, in weighing that evidence
against the other opinions of record, the Board accords
greater probative weight to the VA obtained opinion and Dr.
Christy's opinion, due, in part, to the degree of certainty
of his opinion.
While the veteran's attending physician indicated that he had
treated the veteran's inclusion body myositis for some time,
and that he had noted similarities between certain cellular
formation involving the veteran's inclusion body myositis and
viral infections, he only suggested that there might be a
link between the veteran's service-connected hepatitis and
his diagnosed inclusion body myositis. Further, while in his
subsequent letter of November 1999, Dr. Wald stated that
there had been reported associations between viral infections
and inclusion body myositis, he had only been able to cite
one specific example of such a relationship to hepatitis C.
In contrast, the VA examiner acknowledged Dr. Wald's cited
example, but offered that while such example suggested a
remote possibility of a nexus between inclusive body myositis
and hepatitis, such relationship was considered unlikely. As
noted, Dr. Christy, in a letter dated in October 1999 stated
that there were no known associations between the two
diseases.
The Board observes that clinical treatment records dating
from November 1995 to the time of the veteran's death only
note that the veteran had a history of a diagnosis of
infectious hepatitis, and do not include notations of any
treatment for chronic hepatitis. Actual clinical treatment
records show that the veteran was seen for physical
complaints involving his diagnosed inclusive body myositis,
but do not contain any suggestion that his service-connected
residuals of infectious hepatitis either caused or were in
any way related to the inclusive body myositis. The Board
finds that while there may have been one specific instance of
a relationship between hepatitis C and inclusion body
myositis in the past in another case, there is no evidence of
such a relationship in this particular case. The veteran's
attending physician, while attesting to the existence of at
least one other case and in cases involving other types of
viral infections, did not offer any opinion stating that in
this specific instance, the veteran's service-connected
residuals of infectious hepatitis resulted in or otherwise
contributed to the incurrence of his diagnosed inclusive body
myositis. Dr. Wald's opinion that there is a suggestion of
an infectious relationship to IBM is simply too speculative
and attenuated to serve to place the evidence in this case in
equipoise.
The Board may adopt a medical expert opinion where the expert
has provided reasons and bases for an opinion and has fairly
considered the material evidence of record that appears to
support an veteran's position. See Wray v. Brown, 7 Vet.
App. 488, 493 (1995); see also Miller v. West, 11 Vet.
App. 345, 348 (1998) (medical opinions must be supported by
clinical findings in the record) and Bielby v. Brown, 7 Vet.
App. 260, 268 (1994) (an independent medical opinion, at a
minimum, must review a claimant's file as to military service
and medical conditions while in service; otherwise, the
opinion is considered uninformed and valueless on the issue
of causation). The Board concludes that the neurologist's
opinion obtained by the RO in August 1999 in fact did
consider the material supporting the appellant's position.
The Board finds that the specificity of this opinion as well
as the degree of certainty in which it was rendered make it
of significant value in determining the critical issue in
this case, and adopts the opinion.
While the Board has carefully considered the appellant's
opinions in reviewing the matter on appeal, the Board notes
that as a lay person, lacking in medical training and
expertise, the appellant is not competent to address issues
requiring an expert medical opinion, to include medical
diagnoses or opinions as to medical etiology. See Moray v.
Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet.
App. 492 (1992). Therefore, in light of the foregoing, the
appellant's claim must be denied.
As the preponderance of the evidence is against the
appellant's claim, it follows that the doctrine of reasonable
doubt is not for application. See 38 U.S.C.A. §§ 5103,
5103A (West Supp. 2001); Gilbert v. Derwinski, 1 Vet. App.
49, 54 (1990).
II. Chapter 35 Benefits
With respect to the appellant's claim for Dependents'
Educational Assistance benefits, the Board finds that,
because the veteran's death has been found not to have been
due to service or a service-connected disability, the
appellant is not eligible for an award of benefits under the
provisions of 38 U.S.C.A. § 3501(a)(1)(B), (C), (D) (West
1991). An "eligible person" includes the surviving spouse
of any person who dies as a result of a service-connected
disability, the spouse of a POW, and the spouse of a person
who died with a permanent total disability rating. Thus, the
appellant's claim must be denied for lack of legal merit.
See Cacalda v. Brown, 9 Vet. App. 261, 265 (1996); Sabonis v.
Brown, 6 Vet. App. 426 (1994); appeal dismissed, 56 F.3d 79
(Fed. Cir. 1995).
ORDER
Entitlement to service connection for the cause of the
veteran's death is denied.
Entitlement to DEA benefits pursuant to Chapter 35, Title 38,
United States Code, is denied.
S. L. KENNEDY
Member, Board of Veterans' Appeals